(dissenting). The only special reason assigned by prosecutor for vacating the tax brought up to the Supi'eme Court by this' certiorari was, that by an act of the legislature, passed March 16th, 1869, their property was exempted from taxation.
The Supreme Court, it is conceded, correctly held, that the act so relied on has been repealed by the amended constitution.
In my judgment, this court ought not to consider or adjudicate on the exemption of prosecutor’s property under the provisions of the General Tax law of 1866. The public authorities, interested in maintaining this tax, have had no notice of any claim to exemption under that act. They were ■not called on to show what exemption was made thereunder. *378Incidentally the evidence does show exemptions under that act, and, in the absence of proof to the contrary, it should be-presumed that all was exempted that the act directed to be-exempted.
The public-ought not to be concluded on a point not raised or put at issue, as to which they were not notified to produce-evidence, and which, I may add, was not raised in the argument.
I vote to affirm the judgment below.
For affirmance—Mague. 1.
For reversal—The Chancellor, Chief Justice, Depue, Garrison, Scudder, Brown, Clement, Cole, Smith, Whitaker. 10.